2 S.W.2d 771 | Mo. | 1928
Lead Opinion
This appeal was transferred to this court by the Kansas City Court of Appeals on the ground that the title to real estate is involved. The case concerns the administration sale of land in the probate court.
In January, 1923, the appellant widow-administratrix filed her petition in the Probate Court of Buchanan County under Section 106, Laws 1921, page 111, for an order to sell realty of the intestate, her deceased husband, subject to homestead rights and existing mortgages, to pay her allowance of $900 for a year's support, and, as we construe it, her $400 absolute allowance, both theretofore made by the court. The deceased left also two minor children, and the homestead rights referred to were vested in her and them. The statute mentioned, Section 106, since its reenactment in 1921, has sanctioned *950 the probate sale of land for the payment of the year's support allowance (it says nothing about the $400 statutory absolute allowance) and provides for the taking of the same steps as in case of the sale of real estate to pay debts.
The respondent Nettleton Bank thereupon filed an intervening pleading setting up that it had an allowed demand against the estate, representing an indebtedness contracted prior to the acquisition of the homestead by the deceased, and asking that in view of its claim the whole title to the land be sold, homestead interest included, for the payment of its debt as well as the widow's allowance. This relief evidently was sought under Section 5857, Revised Statutes 1919, which provides, in substance, that the homestead of a deceased person may be sold by the probate court free of the rights of the widow and children, for the payment of his debts "legally charged thereon during his lifetime." By this statute also, the procedure prescribed is the same as for ordinary probate sales to pay debts.
The probate court decided in favor of the bank, ordering the whole title sold, and the administratrix appealed to the circuit court. The latter court similarly ruled, and the administratrix took this appeal. Evidence was introduced by the respondent bank at the circuit-court trial showing its demand represented a note indorsed and negotiated to it by the deceased. The note was not reduced to judgment or the payment thereof secured by any voluntary or involuntary lien or incumbrance on the land during the lifetime of the deceased. The bank relied on the facts that its debt antedated the acquisition of the homestead and that its demand thereon had been allowed, to bring the claim within the homestead statute. The administratrix's position at the trial seems to have been that the bank's demand was invalid because it had made no effort to collect the note from the principal signer thereof, and because the demand based on the note had not been properly verified. She also claimed, as she does on the appeal, that the bank had no right to engraft its homestead proceeding on her application and that the court erred in awarding relief outside the scope of her application, in response to the bank's petition.
Late in 1926, long after the trial below, this court held in Maupin v. Longacre,
Does this case involve title to real estate within the meaning of Article VI, Section 12, Constitution of Missouri? There are really two proceedings: (1) the application of the administratrix to sell the real estate of the deceased, subject to and excluding the homestead, (2) and the bank's application for the sale of the same land, including the homestead. But the two proceedings were treated as raising an issue whether the homestead should or should not be sold, and were tried as one case, one judgment was rendered and one appeal taken. In these circumstances, they should be treated as one case on appeal (Bramell v. Adams,
Exclusive jurisdiction of appeals in cases involving title to real estate was vested in the Supreme Court by the constitutional amendment of 1884 (Sec. 5, Art. VI) which went into effect November 19, 1884. [State v. Kyle,
But there are two decisions in which the question of jurisdiction was raised and expressly determined. The first, Swan v. Thompson,
Without reference to or consideration of the Swan case, the point was ruled the other way in Dildine v. DeHart (Mo. App.), 225 S.W. 130,
In our opinion the conclusion in the Swan case, supra, is right, and the Dildine case is erroneous. The decisions cited by the latter, above set out, are all widely dissimilar in facts, and no one of them touches upon the particular question presented in that and this action. Evidently they are thought to announce a general principle, and they do. The principle running through them is that, for an action to involve title to real estate in the constitutional sense, the judgment sought or rendered must directly affect or operate upon the title. That is the law, unquestionably; but does a probate court order or a circuit court judgment (on appeal from the probate court) merely directing the sale of the intestate's real estate for the payment of his debts — does such an order or judgment, we say, directly affect title within the meaning of the Constitution? We are convinced it does not.
This court has held in many cases that title, to be involved in an action, must be in issue. As said in a statement of the rule frequently quoted: "It is not enough that the judgment, when carried into execution, will affect the title to land. The title must be involved in the suit itself, and be a matter about which there is a contest." [Bailey v. Winn,
It is on this theory the decisions of this court have ruled consistently and uniformly since the adoption of the Constitution in 1875 (and the law is the same elsewhere) that suits to foreclose or enforce mortgages, tax bills, mechanic's liens and other liens, do not involve title to real estate. In all such cases title is necessarily conceded to be in the defendant, and the plaintiff's action, instead of disputing the defendant's title, merely endeavors to subject the land, as the defendant's
property, to the plaintiff's lien rights. [3 C.J. pp. 393, 394, secs. 181, 182; State ex rel. Haeussler v. Court of Appeals,
A like rule applies when a judgment is sought to be enforced by execution against land and the levy is resisted by motion to quash or by injunction. [State ex rel. v. Elliott, 180 Mo. l.c. 665; Lawson v. Hammond,
It follows that to involve title within the meaning of the Constitution a judgment must adjudicate a title controversy. The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another. The rule is established by a great variety of cases. [Hanna v. So. St. J. Land Co.,
Without attempting to quote from the cases just cited, we permit ourselves an illustration. As already twice observed, it is firmly established that a suit to enforce or foreclose a mortgage does not involve title to real estate; on the other hand, a suit to cancel a mortgage *954
on the ground of fraud, does involve title. [Linneman v. Henry (Banc), 291 S.W. 110; Conrey v. Pratt,
To avoid apparent inconsistency between what has been said in the preceding paragraphs and what has been ruled in other cases, it seems necessary to touch upon another thought. It is not to be understood that jurisdiction is always dependent upon the issues made by the pleadings or upon the technical perfection thereof. The kind of jurisdiction we are considering is appellate jurisdiction over the subject-matter. Unless a court have that, it cannot pass upon the sufficiency of the pleadings. [State ex rel. v. Shain,
Conversely, though the judgment rendered do not determine title, yet if the judgment sought by the appealing litigant would directly affect title, title is directly in issue, and therefore involved; but in that case the pleadings must be looked to to settle the question. However, for the reason just stated, the scrutiny does not go to the extent of determining whether the pleadings relied on state a good cause of action, but only far enough to ascertain the class in which the case falls with respect to relief sought. There are a few exceptional instances in which it may be necessary to consult other parts of the record, as where title is put directly in issue by the pleadings, but the issue is abandoned and the pleadings fail to disclose the final relief sought (Loewenstein v. Queen Ins. Co.,
One further observation. In applying the constitutional provision probably the greatest difficulty encountered has been in determining when a judgment does directly affect title. The long line of injunction cases to restrain trespass on real estate is a good illustration. In these cases usually the paramount and many times the sole issue is over title. The defendant answers admitting the acts complained of, but justifies on the ground that the land was his and he had a right to do them; and yet the ultimate issue is whether the defendant shall or shall not be enjoined from doing the acts. No direct title relief is prayed. For nearly thirty years the rule was unsettled, wavering. In Ripkey v. Gresham,
In one case, Force v. Van Patton, 149 Mo. l.c. 449, it is said that to involve title the case must be of a character such as ejectment, actions to remove a cloud on title, or to quiet title, or to set aside a conveyance, etc. Condemnation suits, actions for specific performance of contracts to convey land, to reform a deed and the like also might be mentioned. These, of course, are merely illustrations, but they exemplify the rule. We understand the law to be that no case in which the judgment sought or rendered does not directly determine title in some measure or degree, even though it may affect title in a remoter sense (State ex rel. v. Reynolds,
Now to apply this too general, perhaps, discussion. It is clear, we think, that a probate order for the sale of real estate to pay debts, does not fall within the principles outlined in the foregoing paragraphs. The proceedings therefor, like proceedings to enforce liens, etc., are based on the assumption that the land belongs, or belonged, to the deceased, and by administrative processes it is subjected to the payment of his debts. Title is not in dispute, or, at least not in any such sense as that the probate court can or does decree concerning it. *956
Indeed, the probate court has no jurisdiction to decide title controversies. Such has been the law in this State for many years. [Shields v. Ashley's Admr.,
Regarding the bank's application to sell the homestead. The St. Louis Court of Appeals had before it in 1910, a proceeding, In re Estate of William Street v. McCune,
In transferring the case the Court of Appeals referred to the case of Snodgrass v. Copple, 203 Mo. l.c. 482, 487. In that case it was held that a judgment sustaining a motion to quash an execution on the ground that the land levied upon was the homestead of the execution debtor, or defendant, did not involve title to real estate, but the opinion added that if the homestead exemption right of the defendant rose to the dignity of a title or estate in land (the case ruled it did not) title would be involved. So the decision really passed off on the point that title was not involved, because the defense interposed by the execution defendant concerned only an exemption right or privilege, which fell short of being an estate or title interest in land. Now in this case the homestead interest of the widow and minor children is an estate in land (Bushell v. Loomis,
Consider for a minute the nature of the proceeding. The petitioning bank asks that the homestead interest of the widow and children be sold for the payment of its debt. As a basis for that application *957
it charges the debt was contracted before the homestead was acquired. This allegation fails to measure up to the requirement of the statute (Sec. 5857, R.S. 1919) that the debt be "legally charged" on the homestead during the lifetime of the intestate, as those words are interpreted in Maupin v. Longacre,
On the other hand a defense made by the widow and children that the land is their land — their homestead estate — does not put title in issue, and is no defense at all because the plaintiff admits it; but even if it were regarded as a defense, it would be a defense merely, and not an affirmative plea for relief upon which the court might by its judgment take title from one and give it to another. It would be like the illustration put a while ago, where a defendant in a mortgage foreclosure suit pleads title facts as a defense without praying cancellation of the mortgage. If an effort were made to inject a genuine title controversy into the proceeding the probate court would have no jurisdiction to try it. The truth is that such defenses as may be made in the probate court to a proceeding of the character under consideration, go to the right to have the sale made, and there they must and do stop. The question in this case is whether the bank has a debt of such character as entitles it to the sale sought, under its pleading. Whatever the widow and children may assert about their title rights, no judgment can be entered except to order the sale or refuse it, precisely as if, say, the sole objection were for an alleged failure to give notice or to take necessary procedural steps; and that is all the court did do in this instance — order the sale.
And so we conclude title to real estate is not involved in either angle of the case, and that the cause should be remanded to the Kansas City Court of Appeals. In so holding, we conceive no question of vested rights to be involved, no question of denying a day in court; it is simply a question of which appellate court shall hear the case.
Cause remanded to Kansas City Court of Appeals.
Addendum
This cause coming into Court en Banc, the foregoing opinion of ELLISON, C., is adopted as the decision of the court. All of the judges concur. *958